Sex-Bias Remedies Upheld

...The U.S. Supreme Court ruled unanimously last month that Title IX of the Education Amendments of 1972 is not the exclusive means for suing districts over sex bias.

The justices ruled that the 1972 statute called Title IX does not bar victims of sex discrimination in schools from pursuing claims under the federal statute known as Section 1983 - a Reconstruction-era law that allows plaintiffs to sue any individual who violates their civil rights. Analysts believe the statute may offer wider protections than Title IX, which bars sex discrimination in federally financed schools and colleges.

"We conclude that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or as a substitute for Section 1983 suits as a means of enforcing constitutional rights," Justice Samuel A. Alito Jr. wrote for the court on Jan. 21 in Fitzgerald v. Barnstable School Committee (Case No. 07-1125).

During the 2000–2001 school year, the daughter of petitioners Lisa and Robert Fitzgerald was a kindergarten student in the Barnstable, Massachusetts, school system, and rode the bus to school each morning. One day she told her parents that, whenever she wore a dress, a third-grade boy on the school bus would bully her into lifting her skirt.

Lisa Fitzgerald immediately called the school principal, Frederick Scully, who arranged a meeting later that day with the Fitzgeralds, their daughter, and another school official, Lynda Day. Scully and Day then questioned the alleged bully, who denied the allegations. Day also interviewed the bus driver and several students who rode the bus. She concluded that she could not corroborate the girl’s version of the events.

The Fitzgeralds’ daughter then provided new details ofthe alleged abuse to her parents, who relayed them toScully. Specifically, she told her parents that in additionto bullying her into raising her skirt, the boy coerced herinto pulling down her underpants and spreading her legs. Scully scheduled a second meeting with the Fitzgeralds to discuss the additional details and again questioned theboy and other students.

Meanwhile, the local police department conducted anindependent investigation and concluded there was insufficient evidence to bring criminal charges against the boy. Based partly on the police investigation and partly on the school’s own investigation, Scully similarly concluded there was insufficient evidence to warrant discipline.

Scully did propose remedial measures to the Fitzgeralds. He suggested transferring their daughter to a different bus or leaving rows of empty seats between the kindergarteners and older students on the original bus. The Fitzgeralds felt that these proposals punished their daughter instead of the boy and countered with alternative proposals. They suggested transferring the boy to a different bus or placing a monitor on the original bus. The Barnstable school system’s superintendent, Russell Dever,did not act on these proposals.

The Fitzgeralds began driving their daughter to schoolto avoid further bullying on the bus, but she continued to report unsettling incidents at school. The Fitzgeralds reported each incident to Scully. The Fitzgeralds’ daughter had an unusual number of absences during the remainder of the school year.